Dover in Review, Part 1: Is Judge Jones an activist judge? Over the next week or so, I plan to file several posts analyzing issues relating to Judge Jones' decision in the Dover case. I start today by revisiting the question of whether Judge Jones is an "activist" judge. Some Darwinists are livid that I've applied this label to the Judge. Although I've explained my reasons for regarding Jones as an activist in detail to many reporters, my full views haven't really been reported. So I thought I would explain them here.

I regard Judge Jones as an activist in this case not because I disagree with the outcome of his decision (although I do), but because I disagree with the injudicious and overreaching manner in which he framed his decision.

It is a standard principle in good constitutional jurisprudence that a judge should only go as far as necessary to answer the issue before him. So if a judge can decide a case on narrow grounds, that's what he ought to do. He shouldn't try to to use his opinion to answer all possible questions. In the present case, Judge Jones found that the Dover board did not act for a legitimate secular purpose. Instead, he determined that board members acted for clearly religious reasons. Having made this determination, the specific policy adopted by the Dover board was plainly unconstitutional under existing Supreme Court precedents. End of story. There was no need for the Judge to launch an expansive discussion of whether intelligent design is science, whether there is scientific evidence for the concept, whether it is inherently religious, whether Darwinism has flaws, or whether Darwinian evolution is compatible with faith. A judge who actually adheres to the idea of judicial restraint would not have ventured into these other areas, because they were completely unnecessary for the disposition of the case.

Why, then, did Judge Jones venture so far afield from what was necessary to determine the case? From the comments he made to the news media, it seems that he wanted his place in judicial history. He relished the idea that he could be the first judge to give a definitive pronouncement on ID, and he didn't want to let go of that opportunity just because good judicial craftsmanship wouldn't allow it. Judge Jones also had no small estimate of his own importance in the scheme of things. Take the following remarkable passage from his opinion:

the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us. [p. 63] (emphasis added)

This passage exhibits the height of presumption, and it's why in my initial statement after the trial I referred to Judge Jones as having "delusions of grandeur." First, and contrary to the Judge's claim, a determination of whether ID is science was plainly NOT essential to the disposition of the case, as pointed out above. Even more troubling, however, is the Judge's suggestion that he wanted to determine whether ID is science so that no other judge need investigate the facts for himself. Judge Jones is a federal district court judge in one particular district court in Pennsylvania. But he's speaking as if he is more powerful than a majority on the United States Supreme Court! He is staking out the claim to have the right and duty to decide the question of whether intelligent design is science for all other judges in the entire United States in the future. Lower federal court judges are bound by Supreme Court precedents, but they certainly aren't bound by the rulings of other lower court judges at the same level. Although other federal judges certainly can refer to Judge Jones' decision (especially to his legal reasoning), every judge has a duty to reach an impartial and independent determination of the facts and law in the cases before him. Another federal district court judge can't simply say, "Well, Judge Jones has already decided the matter, so there is no need for me to do anything in this case before me." Nor can the judge tell the parties to a new case: "I've decided not to allow you to present any evidence, because Judge Jones already heard the evidence three years ago." Judge Jones, no matter what he thinks, is not the entire federal judiciary. Nor does he have the right to speak for the entire federal judiciary.

Another thing: Judges who truly believe in judicial restraint are careful not to try to use judicial power to decide divisive cultural controversies unless it is legally necessary to do so. In this case, as pointed out previously, Judge Jones had narrow grounds on which to base his decision. But he chose not to do so because he wanted to issue a definitive ruling on the disputed questions of whether intelligent design is science and whether it could ever be taught constitutionally in science classes. He wanted to decide the larger public controversy for all future legislators, school boards, and judges. That is judicial activism with a vengeance. It's the same type of activism that led the federal courts to try to decide the issue of slavery before the Civil War by judicial fiat in the case of Dred Scott. And it's the same type of judicial activism that led the federal courts to inject themselves into a host of social conflicts (such as abortion) during the past few decades. Far from resolving controversial issues, such activism betrays the democratic process and often leads to further polarization. By giving everyone a stake in the discussion, the democratic process tends to promote incremental solutions and compromise, which cools tensions over the long term. That's why judges who believe in judicial restraint are careful not to intervene on one side of a controversial debate unless absolutely necessary. It is the hallmark of activism for a judge to try to impose his view on a controversy when such a course of action is not absolutely necessary as a matter of law.

The main responses I've heard to the charge that Judge Jones is an activist are these: (1) he insists he's not an activist; and (2) he's a lifelong Republican.

Well, of course Judge Jones says he's not an activist. But methinks he protests too much. In his decision he goes out of his way to announce that his opinion will surely be attacked as an activist one. Far from indicating that he isn't an activist, I think that this self-serving disclaimer indicated that he plainly knew he was being an activist and wanted to cover himself.

Regarding the fact that he is a Republican appointed by a Republican President: So what? The most liberal activist member of the current United States Supreme Court (John Paul Stevens) was appointed not by Bill Clinton but by Republican President Gerald Ford. President Ronald Reagan, meanwhile, appointed a number of judges (at all levels) who turned out to be just as liberal as any Democratic appointees. Only someone with scant knowledge of judicial appointments over the past few decades would claim that the fact that a Republican president appointed a judge would mean that the judge could not be a judicial liberal or an activist.

Of course, the newsmedia are now fast spinning the tale that Judge Jones is not only a Republican, but he's supposed to be a conservative and devoutly religious Republican. As I will blog about soon, those claims seem to be about as mythical as the view that Judge Jones isn't an activist.

Dover in Review, pt. 2: Did Judge Jones read the evidence submitted to him in the Dover trial?

It's becoming glaringly apparent that Judge Jones was incredibly sloppy with the purported findings of "facts" in his lengthy 139-page judicial opinion. Time and again, Judge Jones makes assertions in his opinion that are unambiguously factually wrong--even though the correct information was a part of the official record before him. It is beginning to look like he didn't even bother to read or consider the information and arguments submitted by the side he disagreed with.

Judge Jones writes that "a final indicator of how ID has failed is the complete absence of peer-reviewed publications supporting the theory." (p. 87, emphasis added) Again, he claims that "ID is not supported by any peer-reviewed research, data or publications." (p. 87, emphasis added) In a footnote, he glancingly mentions one peer-reviewed article in the journal Protein Science by Michael Behe, but complains that this article does not explicitly reference ID. (footnote 17, p. 88).

Judge Jones shows no awareness of several other peer-reviewed and peer-edited publications explicitly supporting both intelligent design and Behe's idea of irreducible complexity, even though a list of these publications was submitted as part of the record in the case. See appendix D of the amicus brief filed by the Foundation for Thought and Ethics (FTE) here. This appendix lists such articles as Stephen Meyer's peer-reviewed technical article on the Cambrian explosion and intelligent design in The Proceedings of the Biological Society of Washington, and a more recent technical article on irreducible complexity and intelligent design in the scientific publication Dynamical Genetics. Judge Jones did not deny that these articles were peer-reviewed. He simply ignored them. He also ignored the peer-reviewed academic books like William Dembski's The Design Inference (Cambridge University Press) and Campbell and Meyer's Darwinism, Design and Public Education (Michigan State University Press). A number of the peer-reviewed articles supportive of design were referenced by biologist Scott Minnich during his testimony at trial. Was Judge Jones asleep during that part of Dr. Minnich's testimony?

Drawing on theologian John Haught, Judge Jones treats Thomas Aquinas as the originator of the ID of intelligent design, writing that "ID is not a new scientific argument, but is rather an old religious argument for the existence of God. He [Haught] traced this argument back to at least Thomas Aquinas in the 13th century...." (p. 24) In fact, discussions about the design of nature date back to Plato and Aristotle and significantly predate medieval theology. Judge Jones would have known this fact had he read the Foundation for Thought and Ethics amicus brief, which pointed out (with documentation):

Ancient philosophers began formulating arguments about design long before they had exposure to the Bible, and indeed without basing their arguments on sacred scriptures of any kind.The Greek philosophers Heraclitus, Empedocles, Democritus, and Anaximander believed that life could originate without any intelligent guidance, while Socrates, Plato, and Aristotle advocated that mind was required.33 During the Roman era, Cicero cited the orderly operation of the stars as well as biological adaptations in animals as empirical evidence that nature was the product of “rational design.” [pp. 12-13]

Judge Jones either didn't read the brief, which is part of the official record of the case, or he again ignored the evidence simply because it didn't fit his predetermined conclusions.

Contrary to Judge Jones, there was extensive evidence in the trial record and documents submitted in briefs that intelligent design does NOT "require supernatural creation." Indeed, Judge Jones seems to willfully misrepresent the claims of intelligent design scientists, who consistently have made clear from the very start that empirical evidence cannot tell one whether the intelligent causes detected through modern science are inside or outside of nature. For extensive documentation of this fact, see Appendix A to the Discovery Institute amicus brief submitted in the case, available here.

As a scientific theory, all ID claims is that there is empirical evidence that key features of the universe and living things are the products of an intelligent cause. Whether the intelligent cause involved is inside or outside of nature cannot be decided by empirical evidence alone. That larger question involves philosophy and metaphysics.

To justify his false claim that ID requires a supernatural cause, Judge Jones also completely misrepresents the content of the textbook Of Pandas and People. He claims at one point that "Pandas indicates that there are two kinds of causes, natural and intelligent, which demonstrate that intelligent causes are beyond nature." (p. 30) In fact, Pandas explicitly and repeatedly makes the opposite claim: Intelligent causes may be either inside or outside of nature, and empirical evidence alone can't determine which option is correct. Pandas made this distinction even in its early drafts, one of which emphatically stated that "in science, the proper contrary to natural cause is not supernatural cause, but intelligent cause." (FTE Amicus Brief, Appendix B, Document B; emphasis added.) Also consider the following passages from the edition of Pandas actually used in Dover (both of these passages were highlighted for Judge Jones in Appendix A of the FTE amicus brief):

“If science is based upon experience, then science tells us the message encoded in DNA must have originated from an intelligent cause. But what kind of intelligent agent was it? On its own, science cannot answer this question; it must leave it to religion and philosophy. But that should not prevent science from acknowledging evidences for an intelligent cause origin wherever they may exist.”(Of Pandas and People, 2nd ed., 1993, pg. 7; emphasis added)

“Today we recognize that appeals to intelligent design may be considered in science, as illustrated by current NASA search for extraterrestrial intelligence (SETI). Archaeology has pioneered the development of methods for distinguishing the effects of natural and intelligent causes. We should recognize, however, that if we go further, and conclude that the intelligence responsible for biological origins is outside the universe (supernatural) or within it, we do so without the help of science.” (Of Pandas and People, 2nd ed., 1993, pg. 126-127; emphasis added)

Again, the intelligent causes detected through empirical evidence may be either inside or outside of nature; and contrary to Judge Jones, this point is made in the very book he cites to justify his position. Incredibly, Judge Jones at another point in his opinion (p. 25) misinterprets the Pandas' quote on p. 7 as further proof that ID requires a belief in a supernatural cause, claiming:

In fact, an explicit concession that the intelligent designer works outside the laws of nature and science and a direct reference to religion is Pandas’ rhetorical statement, “what kind of intelligent agent was it [the designer]” and answer: “On its own science cannot answer this question. It must leave it to religion and philosophy.”

Contrary to Judge Jones, the above statement clearly does NOT concede that "the intelligent designer works outside the laws of nature and science." Instead, it merely reaffirms that empirical science cannot determine whether the intelligent cause detected resides inside or outside of nature. That further determination requires more than empirical science. Far from being merely "rhetorical," this claim is central to the definition of intelligent design as a scientific theory, and it is reaffirmed and further explained in other passages in Pandas that the Judge ignores (such as the passage on pp. 126-127 cited above).

According to Judge Jones, intelligent design is not just "religious," it is the outgrowth of twentieth-century American Christian "fundamentalism." He makes this claim notwithstanding the fact that the debate over design in nature reaches back to the ancient Greeks (as pointed out above), and that the debate remained an important dispute among scientists from Darwin onward. As explained in the FTE amicus brief:

Design was also an important part of the contemporary scientific debate at the time Darwin’s theory was developed. Indeed, the term “intelligent design” as an alternative to blind evolution was employed by Oxford scholar F.C.S. Schiller as early as 1897. Schiller wrote that “it will not be possible to rule out the supposition that the process of Evolution may be guided by an intelligent design.” Schiller, like modern design theorist Michael Behe, argued for intelligent design without rejecting all forms of evolution or even common descent.

It's important to stress that Judge Jones can't point to even a single doctrine unique to Christian fundamentalism that is incorporated by ID. Indeed, he effectively concedes that ID proponents distinguish their theory from fundamentalism by pointing out that it does NOT involve arguments based on "the Book of Genesis", "a young earth," or "a catastrophic Noaich flood." (p. 35) So where's the fundamentalism?

In wrongly trying to conflate ID with fundamentalism, Judge Jones simply ignored the testimony in his court of two of the most prominent ID scientists, biologists Michael Behe and Scott Minnich. Neither Minnich nor Behe were shown by the ACLU to be fundamentalists (they aren't), neither were shown to believe in a literal reading of Genesis (they don't), neither were shown to come to their beliefs in ID from fundamentalism (they didn't), and both reject neo-Darwinism on scientific grounds. Indeed, Behe has made clear that he had no problem with the modern theory of evolution until he discovered that what he was seeing in the lab did not fit with what he was being told in standard textbook accounts. Behe's skepticism of neo-Darwinism was not driven by a change in religion, but by scientific evidence. So again, where's the fundamentalism?

To conclude, Judge Jones' repeated mistatements of fact and his one-sided recitation of the "evidence" reveal not only a judicial activist, but an incredibly sloppy judge who selects the facts to fit the result he wants.

Dover in Review, pt. 3: Did Judge Jones accurately describe the content and early versions of the ID textbook Of Pandas and People?

In his decision in the Dover intelligent design case, Judge Jones places great weight on the early intelligent design textbook Of Pandas and People published by the Foundation for Thought and Ethics (FTE). According to Judge Jones, early drafts of this textbook supposedly show that intelligent design is merely repackaged creationism. However, Judge Jones seriously misrepresents the facts about Of Pandas and People, and he also misapplies the relevant legal standards.

Before addressing the merits of Judge Jones' assertions regarding Pandas, something needs to be said about the legal and ethical propriety of Judge Jones placing so much weight on this early textbook in his judicial opinion. Frankly, it is astounding that Judge Jones treats Pandas as central to his decision given that he refused to grant the book's publisher, the Foundation for Thought and Ethics, permission to intervene in the case in order to defend itself.

Earlier this year when it became evident that the ACLU was trying to put Pandas on trial just as much as the Dover School Board, the Foundation for Thought and Ethics sought to intervene in the case so that it could defend itself. FTE wanted to cross-examine the ACLU's witnesses as well as present its own experts, evidence, and arguments during the trial. Yet Judge Jones rejected FTE's motion for intervention. FTE was eventually allowed to submit a "friend of the court" brief to Judge Jones, but such briefs do not have the same status as evidence and arguments presented at trial, and the brief was limited to no more than 5,000 words (including footnotes). That's right, Judge Jones allowed FTE a mere 5,000 words to rebut literally hundreds of pages of testimony and allegations made by the ACLU. How is that for fair and impartial justice? Given Judge Jones' explicit refusal to allow FTE to present a defense in the Dover case, his condemnation of FTE's textbook was grotesque.

Regarding the substance of Judge Jones' critique of Pandas, one would do well to read the amicus brief filed by FTE in the case. The FTE brief clearly demonstrates (1) that the published versions of Pandas do not promote creationism; (2) that the early drafts of Pandas did not promote "creationism" as it has been defined by the Supreme Court; and (3) that even if early drafts of Pandas did promote creationism in the eyes of Judge Jones, those drafts should be legally irrelevant. FTE's full brief (including footnotes and appendices with supporting documentation) can be downloaded here and here.

AMICUS BRIEF FILED BY THE FOUNDATION FOR THOUGHT AND ETHICS (excerpts)

I. INTELLIGENT DESIGN, AS DESCRIBED IN PANDAS, DIFFERS FROM CREATIONISM IN BOTH METHODOLOGY AND PROPOSITIONAL CONTENT. A. Intelligent Design, As Described In Pandas, Bases Its Claims On Empirical Evidence And Scientific Methods Rather Than Upon Faith, Doctrine, Or Scripture.

Creationism is identified by its reliance upon religious scripture and doctrine, rather than empirical evidence. By contrast, the theory of intelligent design, as developed in Pandas, relies upon scientific data and does not address religious or doctrinal questions. Pandas infers design using observations, uniform experience, and empirical experimental evidence: "If experience has shown that a certain class of phenomena results from intelligent causes and then we encounter something new but similar, we conclude its origin also to be from an intelligent cause." Pandas consistently takes this empirical approach and nowhere relies upon faith, doctrine, or religious scripture.

B. Intelligent Design, As Described In Pandas, Is Distinct From Creationism Because It Does Not Use Science To Postulate A “Supernatural Creator,” Nor Does It Attempt To Validate The Biblical Account In Genesis.

Plaintiffs contend that teaching intelligent design endorses religion. The endorsement test, as adopted by the Supreme Court, employs an objective component where a statement cannot be taken in isolation but must be read in its entire context: "The meaning of a statement to its audience depends both on the intention of the speaker and on the "objective" meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker's intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker." Plaintiffs ignore the context in Pandas explaining how intelligent design cannot identify the designer as well as Pandas’ emphasis on empirical data.

In Edwards, the Supreme Court held that creation science entailed the “religious viewpoint” that “a supernatural creator was responsible for the creation of humankind.” Plaintiffs try to force the square peg of design into the round hole carved by Edwards, falsely asserting that Pandas postulates a “supernatural entity.” Yet Pandas clearly states that the scientific theory of intelligent design cannot address questions about the ultimate nature of the intelligent cause: "But what kind of intelligent agent was it? On its own, science cannot answer this question; it must leave it to religion and philosophy." "We should recognize, however, that if we go further, and conclude that the intelligence responsible for biological origins is outside the universe (supernatural) or within it, we do so without the help of science." Because it does not delve into questions surrounding the supernatural, Pandas does not violate methodological naturalism (as espoused by plaintiffs).

Moreover, the Pandas edition used in Dover explicitly disclaims endorsement of Christianity: "Advocates of design have included not only Christians and other religious theists, but pantheists, Greek and Enlightenment philosophers and now include many modern scientists who describe themselves as religiously agnostic. Moreover, the concept of design implies absolutely nothing about beliefs normally associated with Christian fundamentalism, such as a young earth, a global flood, or even the existence of the Christian God." This context makes it clear that Pandas does not endorse any particular religious belief, including Christianity. All design implies is “life had an intelligent source.”

In an attempt to attack the scientific basis of the theory of intelligent design, plaintiffs claim that the only alternative to explanation by natural causes is an appeal to supernatural causes. Pandas offers two distinct categories of scientific explanation: natural and intelligent. Pandas carefully distinguishes between “supernatural” causes and “intelligent” causes, for intelligent causes are amenable to scientific investigation, whereas it is impossible to detect whether a cause is “supernatural.” The distinction between intelligent and supernatural causes is a critical one, and it was adopted by FTE before the decision in Edwards, as reflected in early drafts of Pandas. If plaintiffs were correct, Pandas should not explain design using examples of intelligent, yet non-supernatural causes. But Pandas offers many such examples, including human writers, artists, skywriters, car manufacturers, carpenters, tribespeople, and engineers. In short, the intelligent aspect of a cause is detectable, while supernatural identity is not: if an intelligent cause is indeed supernatural, its identity as such cannot be determined via science. Pandas explains that we have everyday experience with detecting intelligence; thus, intelligent design is not an untestable supernatural concept.

3. Statements About A “Master Intellect” Do Not Endorse Religion.

Plaintiffs argue that appealing to a “master intellect” entails a deity. Yet the appropriate dictionary definition of “master” has no religious overtones: "being a master of some occupation, art, etc.; eminently skilled a master diplomat; a master pianist." Pandas refers to the “master intellect” in terms of the designer’s ability to design sophisticated biological molecules. An early draft of Pandas observes: "Some master intellect is the creator of life. But such observable instances of information cannot tell us if the intellect behind them is natural or supernatural. This is not a question that science can answer."

The claim that the complex information in biological organisms is best explained by an intelligent source is no more “ultimate” in its reach than the claim of Neo-Darwinism that all life results from random mutation and natural selection. What matters is not the degree of “ultimacy” but whether the claim is one that science can address. “Thus the so-called ‘Big Bang’ theory, an astronomical interpretation of the creation of the universe, may be said to answer an ‘ultimate’ question, but it is not, by itself, a ‘religious’ idea.” Similarly, intelligent design interprets biological data as sharing the same informational content found in human language and machines. Like Big Bang cosmology or Neo-Darwinism, the theory of intelligent design in biology is not religious because it lacks “comprehensiveness” and is “generally confined to one question.”

4. Pandas Does Not Advocate “Creation Ex Nihilo” And Advocates A View Of The Fossil Record Consistent With That Of Paleontologists.

The phrase “creation ex nihilo” exists nowhere in Pandas. Nonetheless, plaintiffs complain that Pandas advocates “abrupt appearance,” which they claim is equivalent to “creation ex nihilo.” Pandas states that “[i]ntelligent design means that various forms of life began abruptly through an intelligent agency….,” but this language is a comment on the fossil record, not a theological assertion. It is also a commonplace observation among paleontologists. For example, Stephen Jay Gould wrote: “The fossil record with its abrupt transitions offers no support for gradual change . . . transitions between major groups are characteristically abrupt.” [emphasis added]. True, creationism also defined itself in terms of abrupt appearance, but simply because Pandas shared this view with creationists no more renders it a form of creationism than does Stephen Jay Gould’s observation render him a creationist. Moreover, in Edwards, the Supreme Court declared creationism religion because it required the “supernatural”; “abrupt appearance” had no influence upon the majority’s constitutional analysis, no doubt because of the number of mainstream paleontologists who hold similar views.

5. Pandas Does Not Promote A View Parallel To Genesis.

While Edwards took a broad view of creationism, the Court cited extensively to McLean, which found that “the parallels between [creationism] and Genesis are quite specific." These parallels include: "(1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (3) Changes only within fixed limits of originally created kinds of plants and animals; (4) Separate ancestry for man and apes; (5) Explanation of the earth's geology by catastrophism, including the occurrence of a worldwide flood; and (6) A relatively recent inception of the earth and living kinds." Two concurring Justices in Edwards observed that McLean recognized that creationist organizations require commitment to specific religious tenets, including the view that all life was created “by direct creative acts of God during Creation Week as described in Genesis” and “accept[ance] of Jesus Christ as our Lord and Savior.” Pandas promotes nothing even approximating these viewpoints.

Pandas makes no reference to a flood or worldwide geological catastrophe. Pandas never takes the viewpoint that life or the earth were created recently, and at various points incorporates a conventional geological time scale. Pandas makes no references to Genesis or Christian religious doctrines. It does not claim that life was created “out of nothing” and does not even explore questions about the origin of the universe. While the textbook does question, on scientific grounds, the ability of mutation and selection to account for the complexity of life and at other points questions common ancestry of all living organisms, these views in themselves do not constitute a religious viewpoint and indeed are advocated by a number of scientists in mainstream scientific literature.

III. REJECTION OF THE LANGUAGE OF EARLY DRAFTS OF PANDAS CLEARLY DISTINGUISH INTELLIGENT DESIGN FROM CREATIONISM.

Plaintiffs allege that unpublished draft versions of Pandas provide evidence that the “real” purpose of the published book is to promote “creationism” and “creation science.” But this claim rests on faulty logic and a misrepresentation of the content of these draft versions.

A. Early, Unpublished Drafts Of Pandas Have No Bearing Upon What Students Learn In Schools Today.

It is puzzling, to say the least, that Plaintiffs should rely upon early drafts of Pandas, in light of the burden on Plaintiffs to show that either of the first two prongs of the Lemon test have been violated. Unless either the school board, the teachers or the students were aware of the early drafts of Pandas, it is hard to see how their content could be in any way relevant to the question of whether the school board’s actions had a secular purpose, or had a primary effect of advancing or inhibiting religion. Perhaps plaintiffs recognized that what is presented in the book actually adopted by the school board does not support their claim of unconstitutionality—and so they shift attention to an earlier unused version. But the earlier version was never adopted by the school board and will never be seen by students. Amicus thus urges that only the published version of Pandas is germane, and that previous drafts be ignored.

B. The Removal Of “Creationist” Terminology From The Published Version Of Should Be Interpreted As A Rejection Of Creationism, Not As Hidden Support For Creationism.

Assuming, ad arguendo, that the Court looks to previous drafts of Pandas to interpret its meaning, however, Amicus urges the Court to draw precisely the opposite conclusions from those advanced by Plaintiffs. Admittedly there are no canons of “textbook interpretation”; however, using canons of construction employed in interpreting statutes, language removed from an earlier draft of statute is usually understood as a rejection of that language. For example, “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Similarly, in comparing a previous version of legislation that was vetoed to the bill that was ultimately enacted into law, the Supreme Court interpreted the removal of language about retroactivity to mean that Congress intended not to make the law retroactive. Finally, this same form of reasoning is normative among scholars of constitutional law, who refer to language rejected from drafts of constitutional amendments in order to determine what was not the intent of the Framers. If the Court were to apply this canon of construction to Pandas, then the fact that published versions of Pandas removed mention of “creationism” should indicate that textbook authors did not intend to promote creationism.

C. A Similar Rule Applied to Plaintiffs’ Own Expert’s Publication Would Disqualify Dr. Kenneth Miller’s Textbook.

Plaintiffs claim that references to “creation” and “creationists” deleted from pre-publication drafts of Pandas establish the equivalence of intelligent design and creationism. Yet the first two editions of a biology textbook actually published by plaintiffs’ expert Dr. Kenneth Miller explicitly affirmed the anti-religious claim that Darwinian theory “required” belief in philosophical materialism: "Darwin knew that accepting his theory required believing in philosophical materialism, the conviction that matter is the stuff of all existence and that all mental and spiritual phenomena are its byproducts... Suddenly, humanity was reduced to just one more species in a world that cared nothing for us... Worst of all, there was no divine plan to guide us."

Dr. Miller was quick to point out that later versions of his textbooks removed such anti-religious statements. But if unpublished drafts—never seen by the school board or students—evidence the “real meaning” of Pandas, what should be the significance of language that Dr. Miller actually published? Plaintiffs’ attempt to rely on pre-publication drafts of Pandas not only ignores the context in which the constitutional issues in this case arise, but threatens to open a floodgate to lawsuits challenging the “hidden agenda” of textbooks widely used by students today.

D. Early Drafts Of Pandas Did Not In Fact Advocate Creationism As It Has Been Defined By The Supreme Court.

While certain early drafts of Pandas and other writings may have used the terms “creation” and “creationists,” it is clear that these terms were defined to mean something quite different from “creationism” as later defined by the Supreme Court. As noted earlier, from the beginning Pandas specifically rejected the view that science could detect whether the intelligent cause identified was supernatural. Although the process by which an intelligent agent produces a designed object can loosely be called a “creation” (as in stating that this brief was the “creation” of several lawyers), the authors of Pandas clearly understood that this was a “placeholder” for a more sophisticated expression of this concept. A pre-Edwards draft from early 1987 emphatically stated that “observable instances of information cannot tell us if the intellect behind them is natural or supernatural. This is not a question that science can answer.” The same early draft rejected the eighteenth century design argument from William Paley because it illegitimately tried “to extrapolate to the supernatural” from the empirical data of science. Paley was wrong because “there is no basis in uniform experience for going from nature to the supernatural, for inferring an unobserved supernatural cause from an observed effect.” Similarly, another early draft (also from when the manuscript was still titled “Biology and Origins”) stated: "[T]here are two things about which we cannot learn through uniform sensory experience. One is the supernatural, and so to teach it in science classes would be out of place . . . [S]cience can identify an intellect, but is powerless to tell us if that intellect is within the universe or beyond it." By unequivocally affirming that the empirical evidence of science “cannot tell us if the intellect behind [the information in life] was natural or supernatural” it should be clear that the early drafts of Pandas meant something very different by “creation” than did the Supreme Court in Edwards. The decision to use the term “intelligent design” in the final draft to express the emerging theory of origins was not an attempt to evade a court decision, as Plaintiffs have alleged, but rather to furnish a more precise description of the emerging scientific theory.

IV. THE PRESENT THEORY OF INTELLIGENT DESIGN DOES NOT RELY UPON PANDAS AS AN AUTHORITATIVE GUIDE.

If this case were being argued in 1989, Pandas might be more dispositive as an authoritative guide to the theory of intelligent design. But there is now more than 15 years of scholarship by scientists and philosophers of science who think there are empirical means to detect design in nature. Pandas predates most of the major works of the contemporary design movement in science, including monographs by Cambridge University Press, and technical articles in peer-reviewed science and philosophy of science journals. The primary guide to the beliefs and views of intelligent design scholars today should be this record of scholarly and scientific and technical articles, not a supplementary high school textbook written more than a decade-and-a-half ago.